B-134725, MARCH 10, 1958, 37 COMP. GEN. 591

B-134725: Mar 10, 1958

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THE MEMBER IS ENTITLED TO PAY AND ALLOWANCES ON RESTORATION TO DUTY. 1958: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4. IS ENTITLED TO PAY AND ALLOWANCES FROM AND AFTER MAY 20. HE WAS RETAINED BEYOND HIS NORMAL DATE OF EXPIRATION OF ENLISTMENT FOR PURPOSES OF A GENERAL COURT-MARTIAL. THE ENLISTED MAN WAS TRIED BY A GENERAL COURT-MARTIAL AND SENTENCED TO A DISHONORABLE DISCHARGE. WHILE NOT STATED IN YOUR LETTER IT IS ASSUMED THAT THE CONVENING AUTHORITY THEN ORDERED INTO EXECUTION ALL PORTIONS OF THE SENTENCE EXCEPT THE BAD CONDUCT DISCHARGE. THE ENLISTED MAN COMPLETED HIS CONFINEMENT AND WAS RELEASED ON MAY 20. IS RESTORED TO DUTY ON PROBATION. HE IS ENTITLED TO PAY WHILE ON PROBATION AND PERFORMING DUTY.

B-134725, MARCH 10, 1958, 37 COMP. GEN. 591

MILITARY PERSONNEL - COURT-MARTIAL SENTENCE OF FORFEITURE OF PAY AND ALLOWANCES - RESTORATION TO DUTY THE RESTORATION OF AN ENLISTED MEMBER TO DUTY AWAITING APPELLATE REVIEW OF A COURT-MARTIAL SENTENCE OF FORFEITURE OF ALL PAY AND ALLOWANCES MAKES INOPERATIVE THE TOTAL FORFEITURE SENTENCE, AND THE MEMBER IS ENTITLED TO PAY AND ALLOWANCES ON RESTORATION TO DUTY.

TO H. L. FARMER, UNITED STATES MARINE CORPS, MARCH 10, 1958:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1957, WITH ENCLOSURES, TRANSMITTED HERE BY THIRD ENDORSEMENT DATED DECEMBER 19, 1957, OF THE COMMANDANT OF THE MARINE CORPS, REQUESTING DECISION AS TO WHETHER PRIVATE WALLACE GRZEGORCZYK, UNITED STATES MARINE CORPS, IS ENTITLED TO PAY AND ALLOWANCES FROM AND AFTER MAY 20, 1957, AND, IF SO, WHETHER A GENERAL COURT-MARTIAL SENTENCE OF FORFEITURE OF ALL PAY AND ALLOWANCES APPLIES TO PAY AND ALLOWANCES ON AND AFTER THAT DATE.

IT APPEARS THAT THE MEMBER ENLISTED ON APRIL 22, 1953, FOR A PERIOD OF THREE YEARS, AND THAT HIS ENLISTMENT EXPIRED ON APRIL 21, 1956. HE WAS RETAINED BEYOND HIS NORMAL DATE OF EXPIRATION OF ENLISTMENT FOR PURPOSES OF A GENERAL COURT-MARTIAL. ON OCTOBER 4, 1956, THE ENLISTED MAN WAS TRIED BY A GENERAL COURT-MARTIAL AND SENTENCED TO A DISHONORABLE DISCHARGE, CONFINEMENT AT HARD LABOR FOR ONE YEAR, FORFEITURE OF ALL PAY AND ALLOWANCES, AND REDUCTION TO PRIVATE. WHILE NOT STATED IN YOUR LETTER IT IS ASSUMED THAT THE CONVENING AUTHORITY THEN ORDERED INTO EXECUTION ALL PORTIONS OF THE SENTENCE EXCEPT THE BAD CONDUCT DISCHARGE. THE BOARD OF REVIEW ON MARCH 8, 1957, APPROVED ONLY SO MUCH OF THE SENTENCE AS PROVIDED FOR A BAD CONDUCT DISCHARGE, CONFINEMENT AT HARD LABOR FOR NINE MONTHS, FORFEITURE OF ALL PAY AND ALLOWANCES, AND REDUCTION TO PRIVATE.

ON APRIL 16, 1957, THE ENLISTED MAN APPEALED TO THE UNITED STATES COURT OF MILITARY APPEALS. ON JUNE 17, 1957, THE NAVAL CLEMENCY BOARD DENIED CLEMENCY. HOWEVER, THE ENLISTED MAN COMPLETED HIS CONFINEMENT AND WAS RELEASED ON MAY 20, 1957, AND RESTORED TO DUTY AWAITING APPELLATE REVIEW. IT FURTHER APPEARS THAT THE UNITED STATES COURT OF MILITARY APPEALS ON JANUARY 3, 1958, SET ASIDE THE FINDINGS OF GUILTY AND THE SENTENCE AND DIRECTED THAT " A REHEARING MAY BE ORDERED.'

IT HAS BEEN HELD THAT WHERE AN ENLISTED MAN OF THE NAVY, SENTENCED BY A COURT-MARTIAL TO CONFINEMENT AND DISHONORABLE OR BAD CONDUCT DISCHARGE, IS RESTORED TO DUTY ON PROBATION, HE IS ENTITLED TO PAY WHILE ON PROBATION AND PERFORMING DUTY. B-75057, JUNE 17, 1948. WE ALSO HAVE HELD THAT WHERE THERE IS A RESTORATION TO REGULAR DUTY, NOTWITHSTANDING THE SENTENCE BY A COURT-MARTIAL TO A BAD CONDUCT DISCHARGE THE ENLISTED MAN IS ENTITLED TO PAY WHILE PERFORMING DUTY, PENDING DISPOSITION OF THE APPELLATE REVIEW, EVEN THOUGH, UPON APPELLATE REVIEW, THE SENTENCE OF BAD CONDUCT DISCHARGE IS ORDERED EXECUTED. 36 COMP. GEN. 564. SEE ALSO 33 COMP. GEN. 281. OUR DECISION 37 COMP. GEN. 228, IT WAS HELD THAT A NAVY ENLISTED MAN WHO, AFTER EXPIRATION OF HIS ENLISTMENT AND WHILE RESTRICTED TO HIS STATION AWAITING APPELLATE REVIEW OF A COURT-MARTIAL SENTENCE OF A BAD CONDUCT DISCHARGE, WAS ASSIGNED TO A PORT CONTROL OFFICE TO "PERFORM DUTIES OF HIS RATE" WAS ENTITLED TO PAY AND ALLOWANCES.

THE COURT-MARTIAL SENTENCES IN THOSE CASES, HOWEVER, EITHER DID NOT INCLUDE A SENTENCE OF FORFEITURE OF PAY AND ALLOWANCES, OR WHERE THERE WAS A SENTENCE OF FORFEITURE, IT WAS REMITTED AT THE TIME OF RESTORATION TO DUTY. NEVERTHELESS, UNDER THE PRINCIPLES ENUNCIATED IN THE ABOVE CASES, THE RESTORATION OF THE ENLISTED MAN TO A DUTY STATUS ENTITLED HIM TO THE CREDIT OF PAY AND ALLOWANCES FROM THE DATE OF RESTORATION TO DUTY.

WHILE IT DOES NOT APPEAR THAT THE SENTENCE TO TOTAL FORFEITURES WAS EXPRESSLY REMITTED OR SUSPENDED WHEN THE MEMBER WAS RESTORED TO DUTY, THE JUDGE ADVOCATE GENERAL OF THE ARMY CONSISTENTLY HAS VIEWED A RESTORATION TO DUTY AS OPERATING BY IMPLICATION TO SUSPEND THAT PORTION OF THE SENTENCE ADJUDGING TOTAL FORFEITURES WHICH REMAINS UNEXECUTED AT THE TIME OF THE MEMBER'S RESTORATION TO DUTY. 2 BULL. JAG 426; 6 BULL. JAG 11; 8 BULL. JAG 189. SEE ALSO 1 DIG.1OPS. JAGAF 561; 2 DIG.1OPS. JAGAF 839; 6 DIG.1OPS. JAGAF 486. OUR DECISION OF JULY 29, 1943, B-35120, IS IN ACCORD WITH THAT VIEW. IT FOLLOWS THAT THE MEMBER IS ENTITLED TO PAY BEGINNING MAY 20, 1957, WHILE RESTORED TO DUTY.

SINCE THE SENTENCE TO TOTAL FORFEITURES WAS INOPERATIVE AFTER THE MEMBER WAS RESTORED TO DUTY, THE RULE ESTABLISHED IN DECISION OF OCTOBER 13, 1955, 35 COMP. GEN. 204, CONCERNING THE WITHHOLDING OF PAY AND ALLOWANCES FORFEITED UNDER A SENTENCE SET ASIDE PENDING OUTCOME OF A REHEARING IS NOT FOR APPLICATION. ACCORDINGLY, PAYMENT OF PAY AND ALLOWANCES MAY BE MADE TO PRIVATE GRZEGORCZYK FOR THE PERIOD BEGINNING MAY 20, 1957.